Anthony Andreano is a Will County Divorce Lawyer with offices in downtown Joliet next to the courthouse - He is an attorney with 20 years of courtroom experience handling family law matters including uncontested and contested divorces, child support, custody and visitation disputes, alimony, property division, paternity issues, post divorce and other family law matters. Call for a consultation at (815) 954-8175 or visit us online at the link below:

Andreano and Lyons - WEBSITE LINK

Wednesday, April 9, 2014

Getting Exclusive Possession of the Marital Home

Often times
in a divorce case one of the first issues to sort out is, "Will the
spouses live together while the case is pending?". Since a divorce case
can move very slowly through the system - particularly when things are fought
out at each step - exclusive possession of the house can be a major milestone
in the case.Some
attorneys suggest an Order of Protection before the divorce is even filed to
try and get the other spouse out. In such instances, they better have some
familiarity with the judge's practices for Orders of Protection because what
level of abuse is needed to get a spouse booted from the marital home varies
from judge to judge and county to county. Also in many counties, the judge who
decides the Order of Protection issue is NOT the same judge that hears the
divorce. Therefore even if the Order of Order of Protection judge grants
exclusive possession, that may not last long if the divorce judge sees
differently.Another
route is a motion filed in the divorce courts for "Petition for Exclusive
Possession of the Marital Residence" This was the issue of a recent appeal
where an appellate court considered and approved a trial judge's grant of
exclusive possession based on allegations that were not that serious.In re Marriage of Engst the judge
granted the wife's petition for exclusive possession where it found that the
children were being exposed to a highly negative situation and that they were
suffering due to parents' arguing. There were no allegations of physical abuse
but some allegations that the husband was acting "weird", blocking
wife's entry/exit from a room, pushing his chest out and calling her profane
names in front of the kids. The judge granted the exclusive possession even
though the wife admitted to using profanity against the husband on occasion and
admitting that the husband never actually physically abused her.But before
anyone would run to an attorney with similar allegations thinking they can get
their spouse booted from the home, this was one judge, in one county and may
certainly not be the experience everyone would have with similar allegations.While judges
may differ, the law in Illinois is the same. It states under what set of
circumstances a court can grant exclusive possession:

“...only in cases
where the physical or mental well-being of either spouse or their children is
jeopardized by occupancy of the marital residence by both spouses, and only
upon due notice and full hearing...enter orders...granting the exclusive
possession of the marital residence to either spouse..." 750 ILCS
5/701

A judge has
ALOT of discretion in determining whether the physical and mental health of the
other spouse or the children are in jeopardy. An appellate court will only
second guess that decision (after a long appeal process) if it believes an opposite
decision is clearly apparent. That is a hard mountain to climb as appellate
courts are very reluctant to second guess the trial court because the trial judge was there to
listen directly to the parties.What is the
takeaway? Make sure you contact a knowledgeable attorney who is conversant not
only the law but about the county in which the case is pending as many
attorneys have walked their clients into situations without fully advising them
of the risks and the practices of the judge you will go before. To view the
case in its entirety, go to: In re the Marriage of Engst

Other Resources

Anthony Andreano, Will County Divorce Attorney

Anthony Andreano is a Will County divorce attorney practicing in Joliet, Illinois handling all types of family law cases including custody, property division, child support, maintenance/alimony, visitation disputes, paternity and grandparent rights cases. I have been in practice for over 16 years and my cases are limited to those pending in Will County with some litigation in Grundy County. Law Office located at: 58 N Chicago Street Suite 506 Joliet, IL 60432 Phone: (815) 954-8175 Website: www.andreanoandlyons.comCommunity Involvement: I am the immediate past President of the School Board for the Troy Consolidated 30-C located in Will County - one of the fastest growing counties in Illinois. I am also on the Board of Directors for Guardian Angel Community Services, an agency that was started in 1897 by the Sisters of St. Francis of Mary Immaculate to care for orphaned, dependent and needy children. GACS has grown into a county-wide agency that champions the cause of not only foster children but disadvantaged students, their families and those suffering from the effects of sexual assault and domestic violence.